Section 1 Short title
This Act may be cited as the “Essential Caregivers Act of 2021”.
Essential Caregivers Act of 2021
A BILL
To amend titles XVIII and XIX of the Social Security Act to require skilled nursing facilities, nursing facilities, intermediate care facilities for the intellectually disabled, and inpatient rehabilitation facilities to permit essential caregivers access during any public health emergency under the Medicare and Medicaid programs.
Sec. 2 Right to essential caregivers
During a public health emergency declared by the Secretary of Health and Human Services under section 319 of the Public Health Service Act, a resident of any skilled nursing facility (as defined in section 1819(a) of the Social Security Act (42 U.S.C. 1395i–3(a))), nursing facility (as defined in section 1919(a) of such Act (42 U.S.C. 1396r(a))), inpatient rehabilitation facility described in section 1886(a)(1)(Z) of such Act (42 U.S.C. 1395cc(a)(1)(Z)), or intermediate care facility for the intellectually disabled (as defined in section 1905(d) of such Act (42 U.S.C. 1396d(d)) has the right to designate two essential caregivers to have access to and provide assistance and support to the resident at any time notwithstanding any waiver made under section 1135 of the Social Security Act (42 U.S.C. 1320b–5). The resident may change who is designated as an essential caregiver.
Sec. 3 Requiring facilities to permit essential caregivers access during any public health emergency
Skilled nursing facilities; nursing facilities— Section 1819(c) and 1919(c) of the Social Security Act (42 U.S.C. 1395i–3(c), 1396r(c)) are each amended—
in paragraph (3)—
in subparagraph (D), by striking “and” at the end;
in subparagraph (E), by striking the period and inserting “; and”; and
by adding at the end the following new subparagraph:
“(F) implement and maintain, during any public health emergency declared by the Secretary under section 319 of the Public Health Service Act on or after the date of the enactment of this subparagraph for the area in which such facility is located and notwithstanding any waiver made under section 1135, the essential caregivers program described in paragraph (7).”
by adding at the end the following new paragraph:
“(7) Essential caregivers program
“(A) In general—For purposes subparagraph (F) of paragraph (3), the essential caregivers program described in this paragraph is a program implemented by a facility described in such paragraph under which such facility shall—
“(i) allow each resident of such facility the unqualified ability to elect not more than 2 essential caregivers (as defined in subparagraph (D)) to have access to, and provide assistance (as described in subparagraph (C)(i)) to, such resident at such facility, and allow each such resident to amend such election at any time;
“(ii) permit each such caregiver so elected by such resident to provide such assistance to such resident at such facility for 12 hours every day (or, in the case such care is end-of-life care, for an unlimited number of hours every day); and
“(iii) enforce the agreement described in subparagraph (C)(ii) with respect to an essential caregiver.
“(B) Presumption of election—For purposes of subparagraph (A), in the case of a resident who is unable, by reason of physical or mental disability, to make an election described in such subparagraph, the resident representative (as defined in section 483.5 of title 42, Code of Federal Regulations) of such resident shall be permitted to make such election for such resident.
“(C) Essential caregiver defined—For purposes of this paragraph, the term “essential caregiver” means, with respect to a resident of a facility described in subparagraph (A), an individual who—
“(i) will provide assistance consisting of activities of daily living, emotional support, or companionship to such resident; and
“(ii) agrees to follow all safety protocols established by such facility, which shall be clearly specified in writing and be the same as such protocols (including safety standards and entry requirements) applicable to staff of such facility.”
Intermediate care facilities for the intellectually disabled— Section 1905(d) of the Social Security Act (42 U.S.C. 1396d(d)) is amended—
in paragraph (2), by striking “and” at the end;
in paragraph (3), by striking the period and inserting “; and”; and
by adding at the end the following new paragraph:
“(4) the institution implements and maintains, during any public health emergency declared by the Secretary on or after the date of the enactment of this paragraph under section 319 of the Public Health Service Act for the area in which such institution is located and notwithstanding any waiver made under section 1135, the essential caregivers program described in section 1919(c)(7) in the same manner as if such institution were a nursing facility.”
Inpatient rehabilitation facilities— Section 1866(a)(1) of the Social Security Act (42 U.S.C. 1395cc(a)(1)) is amended—
in subparagraph (X), by striking “and” at the end;
in subparagraph (Y), by striking the period at the end and inserting “, and”; and
by inserting after subparagraph (Y) the following new subparagraph:
“(Z) in the case of an inpatient rehabilitation facility that is located on the same campus (as defined by the Secretary) as a skilled nursing facility, nursing facility (as defined in section 1919(a)), or intermediate care facility for the intellectually disabled (as described in section 1905(d)), to establish and maintain, during any public health emergency declared by the Secretary on or after the date of the enactment of this paragraph under section 319 of the Public Health Service Act for the area in which such institution is located and notwithstanding any waiver made under section 1135, the essential caregivers program described in section 1819(c)(7) in the same manner as if such institution were a skilled nursing facility.”
Compliance and notification—
Authority— No caregiver who meets the definition of an essential caregiver in clause (i) of paragraph (7)(C) of either section 1819(c) and 1919(c) of the Social Security Act and who upholds the agreement described in clause (ii) of such paragraph shall be denied access to the skilled nursing facility (as defined in section 1819(a) of the Social Security Act (42 U.S.C. 1395i–3(a))), nursing facility (as defined in section 1919(a) of such Act (42 U.S.C. 1396r(a))), inpatient rehabilitation facility described in section 1886(a)(1)(Z) of such Act (42 U.S.C. 1395cc(a)(1)(Z)), or intermediate care facility for the intellectually disabled (as defined in section 1905(d) of such Act (42 U.S.C. 1396d(d)) of the resident involved.
Notification— In the event of non-compliance with either such clause, such facility must first provide a warning to the essential caregiver and resident in writing citing specific issues of non-compliance and providing clear guidance for corrective measures.
Enforcement— Should the essential caregiver or resident fail to take corrective action, they may be subsequently denied access. In such cases, the facility shall provide to such caregiver and such resident (or health care proxy of such resident), not later than 24 hours after such failure to allow access occurs, a written explanation as to why such care-giver was not permitted to furnish such assistance to such resident. Such explanation must include the resident’s and caregivers’ options for appeal (as described in subsection (e)).
Options for Resident and Caregiver Appeal—
In general— During any period in which any skilled nursing facility (as defined in section 1819(a) of the Social Security Act (42 U.S.C. 1395i–3(a))), nursing facility (as defined in section 1919(a) of such Act (42 U.S.C. 1396r(a))), inpatient rehabilitation facility described in section 1886(a)(1)(Z) of such Act (42 U.S.C. 1395cc(a)(1)(Z)), or intermediate care facility for the intellectually disabled (as defined in section 1905(d) of such Act (42 U.S.C. 1396d(d)) is required to establish and maintain the essential caregivers program under section 1819(c)(3)(F) of such Act, section 1919(c)(3) of such Act, or section 1905(d)(4) of such Act (as added by subsections (a) and (b)), the Secretary of Health and Human Services shall, not later than 15 days after the first day of such period, establish and maintain a process to—
receive appeals from residents and caregivers challenging a decision to deny access; and
investigate all such appeals within 48 hours of receipt.
Enforcement— With respect to appeals received under paragraph (1), the Secretary of Heath and Human Services shall make a determination as to whether a facility described in subsection (e)(1) violated a requirement or prohibition in this Act or in an amendment made by this Act within 7 days of commencing its investigation. If the Secretary determines that a facility has violated a requirement or prohibition in this Act or in an amendment made by this Act, the Secretary shall—
require the facility to establish a corrective action plan to prevent the recurrence of such violation within a 7-day period of receiving notice from the Secretary; and
impose a civil money penalty in an amount to be determined by the Secretary if such facility fails to implement the corrective action plan with the 7-day period specified in paragraph (1).
Regulations— The Secretary of Health and Human Services shall, after consultation with stakeholders (including residents, family members, long-term care ombudsmen, other advocates of nursing home residents, and nursing home providers, promulgate regulations to carry out this Act.